S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    93
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by M. of A. L. ROSENTHAL, BICHOTTE HERMELYN -- read once and
   referred to the Committee on Health
 
 AN ACT to amend the public health law, in relation  to  prohibiting  the
   distribution without charge or sale of flavored nicotine pouches

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 1399-aa of the public  health  law  is  amended  by
 adding a new subdivision 19 to read as follows:
   19.  "NICOTINE  POUCH"  SHALL  MEAN  A  SMOKELESS  PRE-PORTIONED POUCH
 CONTAINING NICOTINE BUT NO TOBACCO, IN WHICH THE  USER  PUTS  THE  POUCH
 BETWEEN  HIS  OR  HER LIP AND GUM AND LEAVES IT THERE WHILE THE NICOTINE
 AND TASTE IS BEING RELEASED.
   § 2. Section 1399-bb of the public health law, as amended by section 4
 of part EE of chapter 56 of the laws of 2020,  is  amended  to  read  as
 follows:
   §  1399-bb.  Distribution of tobacco products, NICOTINE POUCHES, vapor
 products, or herbal cigarettes without charge. 1. No retail  dealer,  or
 any  agent  or  employee  of  a retail dealer engaged in the business of
 selling or otherwise distributing tobacco  products,  NICOTINE  POUCHES,
 vapor  products  intended  or reasonably expected to be used with or for
 the  consumption  of  nicotine,  or  herbal  cigarettes  for  commercial
 purposes,  or  any agent or employee of such retail dealer, or any agent
 or employee of a retail dealer, shall knowingly, in furtherance of  such
 business:
   (a)  distribute without charge any tobacco products, NICOTINE POUCHES,
 vapor products intended or reasonably expected to be used  with  or  for
 the  consumption  of  nicotine,  or herbal cigarettes to any individual,
 provided that the distribution of a package containing tobacco products,
 NICOTINE POUCHES, vapor products intended or reasonably expected  to  be
 used  with  or  for the consumption of nicotine, or herbal cigarettes in
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00683-01-3
 A. 93                               2
 
 violation of this subdivision shall constitute a single violation  with-
 out regard to the number of items in the package; or
   (b)  distribute  price  reduction instruments which are redeemable for
 tobacco products, NICOTINE POUCHES, vapor products intended  or  reason-
 ably  expected  to  be  used with or for the consumption of nicotine, or
 herbal cigarettes to any  individual,  provided  that  this  subdivision
 shall  not  apply to coupons contained in newspapers, magazines or other
 types of publications, coupons obtained through the purchase of  tobacco
 products,  NICOTINE  POUCHES,  vapor  products  intended  or  reasonably
 expected to be used with or for the consumption of nicotine,  or  herbal
 cigarettes  or  obtained at locations which sell tobacco products, NICO-
 TINE POUCHES, vapor products intended or reasonably expected to be  used
 with  or  for the consumption of nicotine, or herbal cigarettes provided
 that such distribution is confined to a designated area  or  to  coupons
 sent through the mail.
   1-a.  No retail dealer engaged in the business of selling or otherwise
 distributing tobacco products, NICOTINE POUCHES, herbal  cigarettes,  or
 vapor  products  intended  or reasonably expected to be used with or for
 the consumption of nicotine for commercial purposes,  or  any  agent  or
 employee  of such retail dealer, shall knowingly, in furtherance of such
 business:
   (a) honor or accept a price reduction instrument  in  any  transaction
 related  to the sale of tobacco products, NICOTINE POUCHES, herbal ciga-
 rettes, or vapor products intended or reasonably  expected  to  be  used
 with or for the consumption of nicotine to a consumer;
   (b)  sell  or  offer  for sale any tobacco products, NICOTINE POUCHES,
 herbal cigarettes, or vapor products intended or reasonably expected  to
 be  used  with  or for the consumption of nicotine to a consumer through
 any multi-package discount or otherwise provide to a consumer any tobac-
 co products, NICOTINE POUCHES,  herbal  cigarettes,  or  vapor  products
 intended  or  reasonably expected to be used with or for the consumption
 of nicotine for less than the listed price or  non-discounted  price  in
 exchange for the purchase of any other tobacco products, NICOTINE POUCH-
 ES, herbal cigarettes, or vapor products intended or reasonably expected
 to be used with or for the consumption of nicotine by such consumer;
   (c)  sell, offer for sale, or otherwise provide any product other than
 a tobacco product, NICOTINE POUCH, herbal cigarette,  or  vapor  product
 intended  or  reasonably expected to be used with or for the consumption
 of nicotine to a consumer for less than the  listed  price  or  non-dis-
 counted  price  in exchange for the purchase of a tobacco product, NICO-
 TINE POUCH, herbal cigarette, or vapor product  intended  or  reasonably
 expected  to  be  used  with  or for the consumption of nicotine by such
 consumer; or
   (d) sell, offer for sale, or  otherwise  provide  a  tobacco  product,
 NICOTINE  POUCH,  herbal cigarette, or vapor product intended or reason-
 ably expected to be used with or for the consumption of  nicotine  to  a
 consumer for less than the listed price or non-discounted price.
   2. The prohibitions contained in subdivision one of this section shall
 not apply to the following locations:
   (a)  private  social functions when seating arrangements are under the
 control of the sponsor of the function  and  not  the  owner,  operator,
 manager or person in charge of such indoor area;
   (b)  conventions  and  trade  shows; provided that the distribution is
 confined to designated areas generally accessible only to  persons  over
 the age of twenty-one;
 A. 93                               3

   (c)  events  sponsored  by  tobacco,  NICOTINE  POUCH,  vapor  product
 intended or reasonably expected to be used with or for  the  consumption
 of  nicotine,  or  herbal  cigarette  manufacturers  provided  that  the
 distribution is confined to designated areas generally  accessible  only
 to persons over the age of twenty-one;
   (d)  bars  as  defined  in subdivision one of section thirteen hundred
 ninety-nine-n of this chapter;
   (e) tobacco businesses as defined  in  subdivision  eight  of  section
 thirteen hundred ninety-nine-aa of this article;
   (f)  factories  as  defined  in  subdivision  nine of section thirteen
 hundred ninety-nine-aa of this article and construction sites;  provided
 that the distribution is confined to designated areas generally accessi-
 ble only to persons over the age of twenty-one.
   3. No retail dealer shall distribute tobacco products, NICOTINE POUCH-
 ES,  vapor  products  intended or reasonably expected to be used with or
 for the consumption of nicotine, or herbal cigarettes at  the  locations
 set  forth  in  paragraphs  (b),  (c) and (f) of subdivision two of this
 section unless such  person  gives  five  days  written  notice  to  the
 enforcement officer.
   4.  No  retail  dealer engaged in the business of selling or otherwise
 distributing electronic cigarettes, NICOTINE POUCHES, or vapor  products
 intended  or  reasonably expected to be used with or for the consumption
 of nicotine for commercial purposes, or any agent or  employee  of  such
 person,  shall  knowingly,  in  furtherance of such business, distribute
 without charge any electronic cigarettes  OR  NICOTINE  POUCHES  to  any
 individual under twenty-one years of age.
   5.  The distribution of tobacco products, NICOTINE POUCHES, electronic
 cigarettes, vapor products intended or reasonably expected  to  be  used
 with  or  for the consumption of nicotine, or herbal cigarettes pursuant
 to subdivision two of this section or the distribution without charge of
 electronic cigarettes, NICOTINE POUCHES, or vapor products  intended  or
 reasonably  expected to be used with or for the consumption of nicotine,
 shall be made only to an individual  who  demonstrates,  through  (a)  a
 driver's license or non-driver identification card issued by the commis-
 sioner  of  motor  vehicles,  the  federal government, any United States
 territory, commonwealth, or possession,  the  District  of  Columbia,  a
 state government within the United States, or a provincial government of
 the dominion of Canada, (b) a valid passport issued by the United States
 government or the government of any other country, or (c) an identifica-
 tion  card  issued  by the armed forces of the United States, indicating
 that the individual is at least twenty-one years of age. Such  identifi-
 cation  need not be required of any individual who reasonably appears to
 be at least twenty-five years  of  age;  provided,  however,  that  such
 appearance shall not constitute a defense in any proceeding alleging the
 sale  of  a tobacco product, electronic cigarette, NICOTINE POUCH, vapor
 product intended or reasonably expected to  be  used  with  or  for  the
 consumption of nicotine, or herbal cigarette or the distribution without
 charge  of  electronic  cigarettes,  NICOTINE POUCHES, or vapor products
 intended or reasonably expected to be used with or for  the  consumption
 of nicotine to an individual.
   §  3.  The  public  health  law  is  amended  by  adding a new section
 1399-mm-4 to read as follows:
   § 1399-MM-4. SALE OF FLAVORED  NICOTINE  POUCHES  PROHIBITED.  1.  FOR
 PURPOSES  OF THIS SECTION, "FLAVORED" SHALL MEAN ANY PRODUCT INTENDED OR
 REASONABLY EXPECTED TO BE USED WITH OR FOR THE CONSUMPTION OF  NICOTINE,
 WITH  A DISTINGUISHABLE TASTE OR AROMA, OTHER THAN THE TASTE OR AROMA OF
 A. 93                               4
 
 TOBACCO, IMPARTED EITHER PRIOR TO OR DURING CONSUMPTION OF SUCH  PRODUCT
 OR  A  COMPONENT  PART  THEREOF,  INCLUDING BUT NOT LIMITED TO TASTES OR
 AROMAS RELATING TO ANY FRUIT, CHOCOLATE, VANILLA, HONEY,  CANDY,  COCOA,
 DESSERT,  ALCOHOLIC BEVERAGE, MINT, WINTERGREEN, MENTHOL, HERB OR SPICE,
 OR ANY CONCEPT FLAVOR THAT IMPARTS A TASTE OR AROMA THAT IS DISTINGUISH-
 ABLE FROM TOBACCO FLAVOR BUT MAY NOT  RELATE  TO  ANY  PARTICULAR  KNOWN
 FLAVOR. A PRODUCT INTENDED OR REASONABLY EXPECTED TO BE USED WITH OR FOR
 THE  CONSUMPTION  OF  NICOTINE,  SHALL  BE  PRESUMED TO BE FLAVORED IF A
 PRODUCT'S RETAILER, MANUFACTURER, OR A MANUFACTURER'S AGENT OR  EMPLOYEE
 HAS  MADE  A  STATEMENT  OR  CLAIM  DIRECTED TO CONSUMERS OR THE PUBLIC,
 WHETHER EXPRESSED OR IMPLIED, THAT SUCH PRODUCT OR DEVICE HAS A  DISTIN-
 GUISHABLE TASTE OR AROMA OTHER THAN THE TASTE OR AROMA OF TOBACCO.
   2. NO NICOTINE PRODUCTS DEALER, OR ANY AGENT OR EMPLOYEE OF A NICOTINE
 PRODUCTS DEALER, SHALL SELL OR OFFER FOR SALE AT RETAIL IN THE STATE ANY
 FLAVORED NICOTINE POUCH PRODUCT.
   3.  ANY  NICOTINE PRODUCTS DEALER, OR ANY AGENT OR EMPLOYEE OF A NICO-
 TINE PRODUCTS DEALER, WHO VIOLATES THE PROVISIONS OF THIS SECTION  SHALL
 BE  SUBJECT  TO A CIVIL PENALTY OF NOT MORE THAN ONE HUNDRED DOLLARS FOR
 EACH INDIVIDUAL PACKAGE OF FLAVORED NICOTINE POUCHES, PROVIDED, HOWEVER,
 THAT WITH RESPECT TO A MANUFACTURER, IT SHALL BE AN AFFIRMATIVE  DEFENSE
 TO  A  FINDING  OF  VIOLATION PURSUANT TO THIS SECTION THAT SUCH SALE OR
 OFFER OF SALE, AS APPLICABLE, OCCURRED WITHOUT THE  KNOWLEDGE,  CONSENT,
 AUTHORIZATION, OR INVOLVEMENT, DIRECT OR INDIRECT, OF SUCH MANUFACTURER.
 VIOLATIONS  OF  THIS SECTION SHALL BE ENFORCED PURSUANT TO SECTION THIR-
 TEEN HUNDRED NINETY-NINE-FF OF THIS ARTICLE, EXCEPT THAT ANY PERSON  MAY
 SUBMIT  A  COMPLAINT  TO AN ENFORCEMENT OFFICER THAT A VIOLATION OF THIS
 SECTION HAS OCCURRED.
   § 4. Subdivision 1 of section 1399-ff of the  public  health  law,  as
 amended  by  chapter  100  of  the  laws  of 2019, is amended to read as
 follows:
   1. Where a civil penalty  for  a  particular  incident  has  not  been
 imposed  or  an  enforcement action regarding an alleged violation for a
 particular incident is not pending under section thirteen hundred  nine-
 ty-nine-ee of this article, a parent or guardian of a person under twen-
 ty-one  years  of age to whom tobacco products, herbal cigarettes, NICO-
 TINE POUCHES  or  electronic  cigarettes  are  sold  or  distributed  in
 violation of this article may submit a complaint to an enforcement offi-
 cer setting forth the name and address of the alleged violator, the date
 of  the  alleged  violation, the name and address of the complainant and
 the person under twenty-one years of age, and a brief statement describ-
 ing the alleged violation. The  enforcement  officer  shall  notify  the
 alleged  violator  by  certified  or  registered  mail,  return  receipt
 requested, that a complaint has been submitted, and shall set a date, at
 least fifteen days after the mailing of such notice, for  a  hearing  on
 the  complaint.   Such notice shall contain the information submitted by
 the complainant.
   § 5. This act shall take effect immediately.